Posted
by
timothy
on Thursday April 09, 2009 @04:43PM
from the balancing-interests dept.

Glyn Moody writes "Are there ever circumstances when software patents that require payment might be permitted by an open source license? That's the question posed by a new license that is being submitted to the Open Source Initiative (OSI) for review. The MPEG Working Group wants to release a reference implementation of the new MPEG eXtensible Middleware (MXM) standard as open source, but it also wants to be able to sell patent licenses. If it can't, it might not make the implementation open source; but if it does, it might undermine the fight against software patent proliferation."

They should use the BSD or MIT licenses if they're more interested in releasing code than promoting public policy. It would provide the key functionality they claim to need without dragging their whole process through the muck and mire.

Of course they could still enforce their patents. The BSD and MIT licenses don't grant any patent rights, so they could still sue for infringement.

I am not a lawyer, but IMNSHO if they go that route, they should probably put a notice alongside the license stating that the software is subject to patents, with a URL of an MPEG LA web page giving more details.

Then why is does their patent on a system comprising a specially-programmed computer to perform the steps of x, and/or an apparatus comprising a processor, memory element, and means for performing x, prevent me from making my own?

Because the purpose of patents is control. Because in this society, power comes from creating scarcity, controlling supply and holding the threat of deprivation over everyone's head, not from creating wealth and being a treasure to all humanity. When you have to pay the powers that be for permission not to act stupid, it's pretty hard to knock them off their roost. Course, that creates waste, violence and poverty in the short term and eventually calamity, war and utter collapse of civilization, but you've got to take the bad with the good...

The open source definition [opensource.org] is a set of 10 criteria that "distribution terms" (i.e. a copyright license) must meet to be legitimately called "open source". The problem is that, if you're dishonest (and many people are), you can still use patent law or other means to render most of those criteria moot while still nominally meeting them.

On the other hand, FSF's free software definition [gnu.org] only deals with the necessary results of those rules, rather than the rules themselves. It doesn't matter whether somebody's lawyers have figured out a clever way to cover all the "open source" checkboxes, unless you have the actual, meaningful freedoms to run, study, adapt, improve, and redistribute a program (including improved versions) to anyone for any purpose at any price, then the program is not free software.

Another misunderstanding of "open source" is the idea that it means "not using the GNU GPL". It tends to accompany a misunderstanding of "free software", equating it to "GPL-covered software". These are equally mistaken, since the GNU GPL is considered an open source license, and most of the open source licenses are considered free software licenses.

That directly addresses what I think a lot of people believe the difference is between "open source" and "free software". If I encounter the terms in a post here I usually make that assumption. Yes I know it is wrong (according to both organizations) but I feel that huge numbers of people have made those meanings.